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Joseph A. Neuberger, Michael P. Bury, Diana Davison, Neuberger & Partners LLP, Toronto Criminal Lawyers
In a prosecution that turns largely on the competing testimony of two witnesses, it is tempting to characterize the trial judge’s task as a straightforward choice between them: decide whose account is more believable, and convict or acquit accordingly. The criminal law, however, is structured to resist precisely that instinct. The recent decision of the Court of Appeal for Ontario in R. v. S.S.D., 2026 ONCA 579, offers a disciplined illustration of why, and of the consequences that follow when a trial judge’s reasons cannot be extricated from the logic of a “he said, she said” determination.
01 • THE PROCEEDINGS BELOW
The appellant was convicted at trial of assault, sex assault, and uttering threats to cause death. The complainant was his wife at the material time. The parties had married in 2015 by way of an arranged marriage and separated in late 2022.
The charges as originally laid were extensive: twelve counts spanning the period from 2018 to 2022. By the conclusion of the trial, however, the matter had narrowed considerably. The trial judge acquitted the appellant on nearly all counts, including a grave allegation that he had choked the complainant to the point of unconsciousness in November 2022. He entered convictions only on the three charges arising from a single incident in September 2018, when, on the complainant’s account, a confrontation concerning unusual charges on the appellant’s credit card escalated into violence after the couple returned home.
Two witnesses were central to the proceeding: the complainant and the appellant, who testified in his own defence and denied any abusive conduct. With respect to the November 2022 allegation in particular, the appellant called a co-worker and adduced records from his trucking company in support of his position that he had been away on a delivery at the relevant time.
02 • THE DIFFICULTY: AN INTERNAL CONTRADICTION IN THE REASONS
On appeal, the appellant’s principal submission was that the trial judge’s reasons were insufficient to permit meaningful appellate review. The Court of Appeal accepted that submission, and the basis for doing so warrants close attention, as it rests on a genuine contradiction rather than an isolated infelicity of expression.
In the analytical portion of his reasons, the trial judge stated unequivocally that, with one exception, he did not find the appellant to be a credible or reliable witness. In the succeeding section, headed “Conclusion,” he began by observing that there were “few flaws” in the appellant’s account. As the Court of Appeal held, these two statements cannot be reconciled. A witness cannot coherently be characterized as both broadly lacking in credibility and very nearly without flaw.
The contradiction was consequential because the conviction depended entirely on how the appellant’s evidence was assessed. Had the trial judge rejected that evidence in its entirety and then concluded that the remaining evidence dispelled any reasonable doubt, the conviction might well have been sustained. If, however, the appellant’s evidence was in fact nearly flawless, the trial judge was obliged to explain why the complainant’s account was nonetheless so compelling as to eliminate any reasonable doubt. No such explanation was provided. The trial judge proceeded directly from the contradiction to a brief and conclusory finding of guilt.
03 • THE UNDERLYING ERROR: J.J.R.D. AND THE “CREDIBILITY CONTEST”
The contradiction was aggravated by the trial judge’s reliance on an earlier decision of the Court of Appeal, R. v. J.J.R.D. It is here that the judgment becomes most instructive for those concerned with the proper treatment of credibility in the criminal law.
J.J.R.D. stands for a sound proposition: a trial judge may reject an accused’s evidence not only by identifying a deficiency in the manner in which the accused testified, but also through a considered and reasoned acceptance, beyond a reasonable doubt, of conflicting credible evidence. It is essential, however, to recall that J.J.R.D. was a case concerned with the sufficiency of a trial judge’s reasons, assessed after the fact on appellate review. It was never intended to furnish a formula for trial judges to apply in the course of adjudicating guilt.
That distinction is far from academic. The governing analytical framework for cases of this kind remains the well-established W.(D.) approach, which is designed to maintain the burden of proof in its proper place. Where a trial judge instead treats J.J.R.D. as an operative decision-making instrument, there arises a genuine risk of transforming the trial into a contest — to accept the complainant and, on that basis alone, to convict — thereby subtly displacing the burden onto the accused to secure belief. As the Court of Appeal observed, the Supreme Court of Canada recently issued precisely this caution in R. v. Berg, 2026 SCC 21, warning that the misapplication of J.J.R.D. raises the spectre of converting trials into credibility contests, the very error that W.(D.) was designed to prevent.
The proposition that the higher courts continue to emphasize is this: a verdict of guilt cannot rest merely upon a finding that the Crown’s version is the more believable or the more plausible. Proof beyond a reasonable doubt demands more than a considered and reasoned acceptance of the complainant’s testimony. To prefer one account over another is not equivalent to being sure.
04 • THE BASIS FOR ALLOWING THE APPEAL
The Court of Appeal was careful to delineate the limits of its holding. It was not engaged in a fine parsing of the reasons in search of error. Appellate courts are to read a trial judge’s reasons functionally as a whole rather than to scrutinize them for isolated missteps, and they accord particular deference to credibility findings. Trial judges are, moreover, presumed to know the law, and the trial judge in this case did direct himself that the proceeding was not a credibility contest.
These principles, however, could not remedy a concrete defect. Because the trial judge stated both that the appellant was not credible and that his evidence contained “few flaws,” it was impossible to ascertain the reasoning by which the finding of guilt had been reached, or to be satisfied that it did not ultimately rest upon a preference for one witness over the other. That uncertainty is fatal, for it deprived the appellate court of the ability to verify that the burden of proof had been correctly applied.
Accordingly, the Court of Appeal allowed the appeal and ordered a new trial. Having found the reasons insufficient for appellate review, it was unnecessary to address the remaining grounds, including the challenge to the conviction for uttering threats.
05 • CONCLUSION
S.S.D. is not a dramatic case announcing a novel point of law. It is, rather, a reminder of something more foundational. Reasons for judgment are not a mere formality; they are the mechanism by which it may be confirmed that a conviction rests upon proof beyond a reasonable doubt and not upon a simple preference for one narrative over another. Where a trial judge’s reasons point in contradictory directions and rely upon a doctrine developed for appellate review rather than for the determination of guilt, even a conviction reached in good faith cannot be permitted to stand.
When a case appears to reduce to the question of whose account is to be believed, it bears remembering that, in a criminal court, that is not in fact the operative question. The operative question is whether the evidence, taken as a whole, leaves any reasonable doubt. The two are not the same, and the distinction between them marks the difference between a conviction that endures and one that must be commenced anew.
READ THE FULL DECISION HERE: R. v. SSD, 2026 ONCA 579
This post discusses R. v. S.S.D., 2026 ONCA 579, a decision of the Court of Appeal for Ontario released August 13, 2026. The case is subject to a publication ban under s. 486.4 of the Criminal Code, and the parties are anonymized in the decision itself. Nothing herein constitutes legal advice. Neuberger & Partners LLP, Sex Assault Defence Lawyers Toronto.
